The stakeholder surveys identified four major themes, which are supported in the proposed regulatory structure:
1. Reduce aquatic plant abundance when plants are impeding use of a waterbody.
2. Non-native species control. In some cases, this may include attempts to eradicate a non-native plant species, depending on the species to be controlled or the extent of its spread within a waterbody. In other cases, the goal may be to keep the population of a non-native species from becoming overabundant rather than to remove the population completely.
3. Ecological protection and restoration. Removal of a population that is negatively impacting a lake ecosystem, preservation of biodiversity and habitat, and lake or ecosystem services protection are also drivers of APM.
4. Public education and outreach. Private service providers and department staff as well as lake organization representatives also see APM as an opportunity to educate the public on aquatic ecology and water quality. This goal was described by a subset of interviewees, while the above three goals were well-represented within most interviews.
Additionally, permit data and control records were examined to determine the types, locations and frequency of aquatic plant control in the state over time. This data was used to support the proposed regulatory framework for large-scale control, pond classifications, public notification and riparian notification.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The department reviewed a list of known private service consultants and contractors for aquatic plant management activities in the state and estimated the number that were likely to meet the definition of a small business, based on staff knowledge of the businesses. The department used a list of all permits from 2019 and 2020 to determine how many permits individual businesses submit as agents of the permit applicant.
Permit data and control records were examined to determine the types, locations and frequency of aquatic plant control in the state over time. This data was used to support the proposed regulatory framework for large-scale control, pond classifications, public notification and riparian notification.
11. Effect on Small Business (initial regulatory flexibility analysis):
The proposed rule provides a net benefit to small business impacted by the rule. The proposed planning and evaluation components are likely to increase opportunities for business growth in the state. In addition, the proposed rule indirectly reduces the compliance requirements for small businesses by:
—Incorporating less stringent compliance or reporting requirements, less stringent schedules or deadlines for compliance or reporting, and consolidation or simplification of reporting requirements in multiple ways.
—Incorporating fewer permitting and reporting requirements, and supplying exemptions from public notification for small waterbodies under 10 acres in some instances.
—Incorporating fewer permitting and reporting requirements for wetland management.
—Incorporating permit amendment options in some instances after the permit has been approved.
—Incorporating multiple options for public or riparian notification and removing the requirement of public notification of the intent to submit a permit from the applicant’s responsibility.
12. Agency Contact Person: Madi Johansen – WY/4, Department of Natural Resources, P.O. Box 7921, Madison, WI 53707-7921; madison.johansen@wisconsin.gov; (608) 712-2798 13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Madi Johansen – WY/4
Department of Natural Resources
P.O. Box 7921
(608) 712-2798
RULE TEXT
Section 1 NR 1.06 (8) is amended to read:
NR 1.06 (8) Sensitive areas. Sensitive areas designated under s. NR 107.05 (3) (i) 107.10 are determined to be public rights features. Section 2 NR 107 is repealed and recreated to read:
Integrated Aquatic Plant Management Program
SUBCHAPTER I – GENERAL PROVISIONS
NR 107.01 Purpose. The purpose of this chapter is to establish procedures and requirements for issuing aquatic plant management permits to protect and develop diverse and stable communities of native aquatic plants and regulate how aquatic organisms and aquatic invasive species are managed pursuant to ss. 23.22 (2) (b) 2., 23.235, 23.24, and 227.11 (2) (a) and (b), Stats., and interpreting s. 281.17 (2), Stats. Communities of native aquatic plants are recognized as a vital and necessary component of a healthy aquatic ecosystem. Aquatic invasive species are recognized as a potential threat to healthy aquatic ecosystems. This chapter establishes procedures and requirements for issuing aquatic plant management permits for introduction or control of aquatic plants. This chapter identifies other permits issued by the department for aquatic plant management that contain conditions required under this chapter for aquatic plant management, and for which no separate permit is required under this chapter. Introduction and control of aquatic plants shall be allowed in a manner consistent with the principles of integrated pest management and shall minimize the loss of ecological values and consider cumulative impacts of control. NR 107.02 Applicability. A person sponsoring, directing, or conducting control of aquatic plants or introducing nonnative aquatic plants to waters of this state shall obtain an aquatic plant management permit from the department under this chapter. Waters of the state include those portions of Lake Michigan and Lake Superior, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems, and other ground or surface water, natural or artificial, public or private, within the state or its jurisdiction as specified in ss. 23.24 (1) (k) and 281.01 (18), Stats. NR 107.03 Definitions. In this chapter:
(1) “Adverse impacts” means a control activity exposure or disturbance to a site or organism that may result in any of the following:
(a) Pesticide residues in excess of food or feed tolerances established by the U.S. environmental protection agency or department of agriculture, trade and consumer protection.
(b) Exceedance of environmental media standards or benchmarks for chemicals established by a federal or state agency.
(c) Visible, measurable or documented effects, including death, illness, stunting, deformation, discoloration, sublethal effects, demographic changes, or other effects likely to be detrimental to non-target species or ecosystems.
(d) Significant degradation in individual or cumulative impacts to human health and welfare; fish and wildlife; ecosystem diversity, productivity, and stability; and recreational values.
(2) “Applicant” means a person applying for a plan or permit or a representing agent applying for a plan or permit on behalf of a person.
(3) “Applicator” means a person applying chemicals to a control site.
(4) “Aquatic plant” means a plant naturally growing in water, saturated soils, or seasonally saturated soils, and includes all of the following:
(a) Algae.
(b) Submersed, floating-leaf, floating, and emergent plants, and their root stalks, seeds, and other vegetative propagules.
(5) “Aquatic vegetative habitat” means an area within an ecosystem where aquatic plants provide for the ecological needs of fish and wildlife, improve water quality, reduce erosion, or provide other ecosystem services.
(6) “Beneficial water use activity” means angling, boating, swimming, the use of water for irrigation or drinking, or other navigational or recreational water use activities.
(7) “Best management practice” means an activity or combination of activities intended to control a target species while avoiding or minimizing adverse impacts on non-target organisms that is both effective and practicable, considering technological, economic, ecological, and institutional factors.
(8) “Body of water” means any lake, river or wetland that is a water of this state.
(9) “Ceded territory” has the meaning given in s. NR 13.02 (1). (10) “Completed application” means a completed and signed application form, including the information specified in ss. NR 107.06 and 107.07, and any other information that may reasonably be required from an applicant and which the department needs to make a decision under applicable provisions of law. (11) “Control” means actions that impact aquatic invasive species and other organisms including manual removal, the use of biological agents, dewatering, desiccation, burning, freezing, shading, suffocation, mechanical force, inhibition, potentiation, or metabolic disruption.
(12) “Department” means the department of natural resources.
(13) “Drainage ditch” means a constructed or reconstructed watercourse for the purpose of draining water from the land or for transporting water for use on the land.
(14) “Epilimnetic lake wide concentration rate” means the calculated concentration of herbicide in a body of water assuming homogeneous mixing of herbicide throughout the upper water layer above the thermocline.
(15) “Hand wicking” means pouring or spraying a pesticide directly onto a wicking glove and applying the pesticide using only the thumb, fingers, and palm of the wicking glove directly to the target species.
(16) “Integrated pest management” means an ecosystem-based decision-making strategy informed by current, comprehensive information on pest life cycles and the interactions among pests and the environment that focuses on long-term suppression of pests or their damage and considers all the available pest control practices.
(17) “Invasive species” has the meaning given in s. NR 40.02 (24). (18) “Lake wide concentration rate” means the calculated concentration of herbicide in a body of water assuming homogeneous mixing of herbicide throughout the entire lake water volume.
(19) “Large-scale control” means a project that implements management activities on a non-localized scale, where the management actions are expected to affect significant portions of a lake, stream reach or wetland.
(20) “Manual removal” means the control of aquatic plants by hand or handheld devices without the use or aid of external or auxiliary power.
(21) “Mechanical control” means the control of aquatic plants using machinery designed to cut, shear, shred, crush, uproot, transport, or otherwise affect aquatic plants and which may require the aid of external or auxiliary power.
(22) “Navigable waters” has the meaning given in s. 30.10, Stats. (23) “Non target organism” means a species not targeted by a control authorized under ch. NR 107. (24) “Ordinary high-water mark” has the meaning given in s. NR 193.03 (28). (25) “Permit” means a permit to control aquatic plants authorized under ch. NR 107. (26) “Pesticide” has the meaning given in s. 94.67 (25), Stats., and includes a pesticide-fertilizer mixture. (27) “Pesticide overspray” means pesticide deposited outside a target application site as a result of an applicator's failure to control the direct flow or application of pesticide from the application equipment so as to confine it to the target application site.
(28) “Pioneering population” has the meaning given in s. NR 193.61 (4). (29) “Plan” means an aquatic plant management and protection plan approved under s. NR 107.05. (30) “Privately accessible pond” means a manmade or natural body of water 10 acres or less that meets all the following requirements:
(a) Is located on the land of a single owner not in common ownership.
(b) Has no surface water connection to other surface waters.
(c) Has no public access.
(31) “Prohibited species” has the meaning given in s. NR 40.02 (41). (32) “Public pond” means a manmade or natural body of water 10 acres or less located on land owned by multiple persons that meets any of the following requirements:
